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Florida Recount Deadline Stays at 3 p.m. in Blow to Nelson

(Bloomberg) -- The deadline for Florida’s mechanical recount of ballots was left at 3 p.m. on Thursday, a federal judge ruled, in a blow to Democratic Senator Bill Nelson as he fights to retain his seat.

U.S. District Judge Mark Walker in Tallahassee issued his order shortly before the deadline to complete a recount that has captured the nation’s attention. Nelson sued to get all of the ballots counted unless the state could prove they were invalid. He trails Republican Governor Rick Scott by about 12,600 votes out of 8.2 million cast.

Election officials in Palm Beach County have said they’re unsure if they can finish the machine recount in time. Walker said it’s not fair to treat voters differently based on the county they live in but that he can’t grant an injunction Nelson sought because he doesn’t have enough information.

"There is a complete dearth of evidence before this court concerning the status, progress or expected completion of the ordered recounts in Palm Beach County,” he said. "This court does not and will not fashion a remedy in the dark."

In a separate case, Walker ruled earlier on Thursday that the state’s law for handling ballots with mismatched signatures was applied unconstitutionally and ordered the state to give voters two more days to prove their identity and ensure their votes are included. He told Florida Secretary of State Ken Detzner to give voters whose mail-in or provisional ballots were rejected until 5 p.m. on Nov. 17 to “cure” any deficiencies in their signatures.

Still, the denial of Nelson’s bid to extend the recount deadline is a serious obstacle to his efforts. Only about 5,000 invalidated ballots at best could be restored by curing the signature problems. And even if all of them are for Nelson, he would likely still be short thousands of votes unless the recount shifts many more ballots in his favor.

Walker also denied Nelson’s request for the publication of a list of ballots rejected because of their signatures. He said he didn’t want the courts to be used by either party to gain access to voters whom they could reach out to based on their party affiliation.

“That is the kind of gamesmanship that will undermine faith in our democracy further,” he said. “I will not be part of it.”

Florida is one of two states where apparent Republican victories on election night have spawned legal battles over counting votes. The other is Georgia, where Democrat Stacey Abrams is trying to get enough votes in the governor’s race to force a runoff with Republican Brian Kemp. Federal courts have ordered the state to delay certifying the vote there until Nov. 16 and required counties to count absentee ballots rejected because of missing or incorrect birthdates.

A hearing was scheduled Thursday on a separate Florida lawsuit filed by Common Cause and the League of Women Voters that asked Scott to recuse himself from the process. On Wednesday, he said he would recuse himself from certifying election results on the canvassing commission.

Scott lawyer Daniel Nordby filed a challenge to the request on Thursday, arguing among other things that Scott’s claims of fraud by Democrats are protected by the First Amendment. The groups’ request for an order barring Scott from making what they call “unfounded claims of fraud" would “raise serious First Amendment issues as it relates to a candidate and elected official’s ability to speak on matters of public concern," Nordby said in the filing.

Walker granted Scott’s motion to quash a subpoena filed by the league, which accused him of improperly interfering in the election to tip the scales in his favor. The judge said he’d reconsider if the plaintiffs could show that Scott was the only source for the information they sought.

“What this Court will not do, however, is permit the Governor to be called for the sole purpose of grandstanding," Walker said.